West v. Wilke

          ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         On December 29, 2017, Plaintiff Mikayla West filed a complaint against Defendant David J. Shulkin, now-former Secretary of Veterans Affairs. ECF No. 1. On June 1, 2018, Plaintiff filed an amended complaint substituting current Secretary of Veterans Affairs, Robert Wilkie, as Defendant.^[1] ECF No. 16. Plaintiff claims that Defendant and his agents racially discriminated and retaliated against her for engaging in protected activity under Title VII by terminating her employment. Id. On May 6, 2019, Defendant filed a motion for summary judgment. ECF No. 27. The motion was granted in part and denied in part, dismissing Plaintiff’s race discrimination claim, but retaining the retaliation claim. ECF No. 33. Defendant moved for reconsideration of the Court’s order denying Defendant’s motion for summary judgment as to Plaintiff’s retaliation claim. ECF No. 34. Plaintiff filed a response on August 3, 2019. ECF No. 46.

         I.

         On or about February 19, 2016, Plaintiff Mikayla West started working at the VA Lutz Medical Center in Saginaw, MI as a Certified Nurse’s Assistant (“CNA”). ECF No. 27-2 at PageID.362. Plaintiff continued in this position until August 2016, when she became a Licensed Practical Nurse (“LPN”) at Lutz. Id. at PageID.362-363. Plaintiff’s change of position was internal from The Community Living Center as a CNA to the Specialty Clinic Unit as a urology and nephrology LPN. Id. Plaintiff was interviewed for the LPN position in the Specialty Clinic by Archia Jackson, Chris Tokarski, and Melissa Pritchard. Id. At the time of this interview, Jackson was the Nurse Manager, Tokarski was the Assistant Nurse Manager, and Pritchard was a Registered Nurse (“RN”) working in the clinic. ECF No. 27-4 at PageID.438, 460. Plaintiff’s employment as an LPN was subject to an orientation period for a period to be determined by the nurse manager of the unit. ECF No. 27-4 at PageID.442.

         Shortly after Plaintiff was hired in the specialty clinic, in approximately October 2016, nurse manager Jackson was detailed to the Education Department and Tokarski became the Acting Nurse Manager. ECF No. 27-4 at PageID.438. During the ordination period, new employees work with Preceptors. ECF No. 27-2 at PageID.379. Preceptors train new employees, shadowing the new employee and providing feedback on the new employee’s clinical notes. Id. at PageID.379-380. Preceptors also review the new employees’ performance every two weeks. ECF No. 27-4 at PageID.449. During Plaintiff’s orientation period, she worked with multiple Preceptors, Susan Sobieray, LPN, Terri Hayes, LPN, Melisa Pritchard, RN, and Cathy Stadler, RN. ECF No. 27-4 at PageID.443. Plaintiff’s two-week reviews on the orientation checklist date September 13, 2016, September 27, 2016, October 11, 2016, October 25, 2016, November 21, 2016, December 1, 2016, and December 19, 2016. ECF No. 31-9 at PageID.726. The two-week reviews included positive comments and a significant amount of constructive criticism of Plaintiff. Id.

         On October 18, 2016, Plaintiff and Tokarski signed Plaintiff’s Annual Competency Assessment. ECF No. 31-10. The assessment indicated that Plaintiff had performed satisfactorily in three of seven categories, Plaintiff had previously successfully completed three categories, and one category was not filled out. Id. These seven categories are all job skills and are not concerned with Tokarski’s behavioral concerns.

         On or about October 26, 2016, Tokarski and Jackson held a meeting with Plaintiff to discuss concerns with Plaintiff’s conduct. ECF No. 27-4 at PageId.445. According to Tokarski, this meeting arose out of concerns she had expressed to Jackson about Plaintiff, and that Jackson suggested that the three have a meeting. Id. A follow-up email sent after the meeting states that Jackson, Tokarski, and Plaintiff discussed (1) the first two-week orientation review, September 13, 2016, (2) a meeting the following day, September 14, 2016, discussing concerns about expediency and having the door closed, (3) a September 29, 2016 meeting in which Plaintiff indicated she felt she was getting into trouble with her co-workers, (4) an incident involving Plaintiff allegedly failing to obey an order to cover the Urology area that occurred the week of October 11, 2016, (5) an incident with the Podiatry Nurse that occurred October 13, 2016, (6) an incident involving the work order that occurred between October 25–26, 2016, and (7) an incident regarding monthly chart reviews with Ed Marshall. ECF No. 27-8 at PageId.470-471.

         On October 27, 2016, Plaintiff replied to the email detailing the October 26, 2016 meeting between Jackson, Tokarski, and Plaintiff. ECF No. 27-13 at PageId.479. In her reply Plaintiff wrote:

I have read this and I don’t agree with any of this I feel as if all of this is opinionated and based off what someone else said. I feel like the work that I do here in the clinic is being overlooked because everyone is looking at the false statements that are being made about me. My character is being degraded based off these inaccurate statements. I really take pride in the work that I do and I go over and beyond for my patients and their families and I just wish that my hard work and dedication didn’t go unnoticed. Id.

         Also, on October 27, 2016 Tokarski received two emails regarding Plaintiff. The first email, from Sobieray, appears to be an orientation update for the weeks of October 17 and 24, 2016. ECF No. 27-10 at PageID.474. In that email Sobieray alleges Plaintiff stated “[i]t gets so boring especially after 4:30pm” and that “[I] don’t understand why someone has to stay when there is ‘nothing to do.’” Id. Sobieray goes on to write that she “pointed ou[t] there is always something to do” and lists examples. Id. Sobieray also shares concerns about Plaintiff, including her need to set-up a voicemail, need to “initiat[e] duties when there is a lull, ” aversion to doing EKG/procedures, failure to follow note-keeping procedures, and an incident involving a work order. Id. The second email is from Marshall detailing an incident where he asked Plaintiff if she wanted to learn about chart reviews and she declined saying “I was not told that we had to do this.” ECF No. 27-11 at PageId.476. The following day, on October 28, 2019, Tokarski forwarded both the Sobieray and Ed Marshall emails to Ed Lesko, the Human Resources Officer at the Lutz facility. ECF No. 27-11 at PageID.476; ECF No. 34-1 at PageID.835. However, while the original Sobieray email was included as an exhibit in Defendant’s motion for summary judgment, the forwarded email to Lesko was not included until the present motion for reconsideration.

         On November 8, 2016, Tokarski had a meeting with Lesko concerning Plaintiff’s 90-Day Personal Follow-Up Evaluation. ECF No. 27-18. Defendant principally relied upon this detail in his motion for reconsideration. Tokarski handwrote a note in her calendar on November 8, 2016, “Ed Lesko – asked if I could terminate new employee said no grounds. Needed to give satisfactory for 90 day. Could not extend or give unsatisfactory.” Id. In her deposition Tokarski stated, “[Lesko] told me I could not mark [Plaintiff] unsatisfactory. As a new management person, I went to HR for guidance, and I have since learned that I can mark somebody as unsatisfactory.” ECF No. 27-4 at PageId.449.

         On November 9, 2016, Plaintiff received a satisfactory review for her overall performance in her 90-day evaluation. ECF No. 27-19 at PageID.489. Tokarski added a note that stated, “[b]ased on previous conversations, understanding of expectations set forward and will continue with orientation.” Id.

         Tokarski received two emails discussing specific instances of concerning conduct by Plaintiff on December 6, 2016, one from Susan Sobieray and one from Terri Hayes. ECF No. 27-22 at PageID.493; ECF No. 27-23 at PageID.494. There is no evidence in the motion for summary judgment or the motion for reconsideration indicating that these emails were forwarded to Ed Lesko in HR on or near December 6, 2016.

         On December 16, 2016, Plaintiff contacted the EEOC office to initiate an informal EEOC complaint. ECF No. 27-26 at PageID.499. Tokarski stated in her deposition that she first learned about Plaintiff’s EEOC complaint when she was invited by Cherryl Biggins, who works for ...